Quashing – Code of Criminal Procedure, 1973 – s.362 – When not applicable – Suit for specific performance of the agreements for sale filed against the appellants by the second respondent and his brother was later withdrawn in view of the out-of-court settlement – Effect on complaint filed by the second respondent – Writ petition filed by the appellants for quashing the complaint was dismissed by the High Court on the ground that there was a bar u/s.362 as the contentions raised were rejected in an earlier criminal revision application, which cannot be re-agitated – Correctness: Held: High Court lost sight of the fact that it was a substantive petition under Article 226 of the Constitution of India for quashing the complaint on the ground that the continuation of the same was an abuse of the process of law – The second prayer in the writ petition could have been hit by s.362, as the prayer was to quash the order on the application for discharge – But the first prayer was for quashing the complaint itself – Therefore, dismissing the first prayer in the writ petition on the ground of the bar of Section 362 of the Cr.PC was erroneous – Furthermore, the second respondent filed application in the pending suit seeking withdrawal thereof categorically stating that in view of the out-of-court settlement with the appellants, he would not lay any claim in any manner whatsoever over the suit properties – He never disputed the correctness of what was stated in the said application, and the order passed permitting the withdrawal of the suit – Thus, he gave up his claim under the agreements and therefore, continuing the complaint would be nothing but an abuse of the process of law – A case was made out to quash the complaint – High Court fell in error in refusing to do so – Complaint quashed. [Paras 15, 16]

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[2024] 7 S.C.R. 127 : 2024 INSC 472

Sardar Ravi Inder Singh & Anr. v. State of Jharkhand & Anr.

(Criminal Appeal No. 2807 of 2024)

08 July 2024

[Abhay S. Oka* and Ujjal Bhuyan, JJ.]

Issue for Consideration

High Court whether erred in dismissing the writ petition filed by the appellants for quashing the complaint filed by the second respondent stating that the contentions raised were rejected in an earlier criminal revision application, which cannot be re-agitated and therefore, there was a bar under Section 362 of the Cr. PC.

Headnotes

Quashing – Code of Criminal Procedure, 1973 – s.362 – When not applicable – Suit for specific performance of the agreements for sale filed against the appellants by the second respondent and his brother was later withdrawn in view of the out-of-court settlement – Effect on complaint filed by the second respondent – Writ petition filed by the appellants for quashing the complaint was dismissed by the High Court on the ground that there was a bar u/s.362 as the contentions raised were rejected in an earlier criminal revision application, which cannot be re-agitated – Correctness:

Held: High Court lost sight of the fact that it was a substantive petition under Article 226 of the Constitution of India for quashing the complaint on the ground that the continuation of the same was an abuse of the process of law – The second prayer in the writ petition could have been hit by s.362, as the prayer was to quash the order on the application for discharge – But the first prayer was for quashing the complaint itself – Therefore, dismissing the first prayer in the writ petition on the ground of the bar of Section 362 of the Cr.PC was erroneous – Furthermore, the second respondent filed application in the pending suit seeking withdrawal thereof categorically stating that in view of the out-of-court settlement with the appellants, he would not lay any claim in any manner whatsoever over the suit properties – He never disputed the correctness of what was stated in the said application, and the order passed permitting the withdrawal of the suit – Thus, he gave up his claim under the agreements and therefore, continuing the complaint would be nothing but an abuse of the process of law – A case was made out to quash the complaint – High Court fell in error in refusing to do so – Complaint quashed. [Paras 15, 16]

Case Law Cited

State of Orissa v. Debendra Nath Padhi [2004] Suppl. 6 SCR 460 : (2005) 1 SCC 568 – referred to.

List of Acts

Code of Criminal Procedure, 1973; Constitution of India.

List of Keywords

Quashing, Agreements for sale; Suit for specific performance; Suit withdrawn/Withdrawal of suit; Out-of-court settlement; Application for discharge; Same contentions rejected earlier; Giving up claim under the agreements; Continuing the complaint would be abuse of process of law.

Case Arising From

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 2807 of 2024

From the Judgment and Order dated 17.07.2017 of the High Court of Jharkhand at Ranchi in WP No.243 of 2016

Appearances for Parties

Krishnan Venugopal, Sr. Adv., M/s. Legal Options, Ms. Sonia Dube, Shatadru Chakraborty, Ms. Kanchan Yadav, Ms. Surbhi Anand, Krishnan Agarwal, Tanishq Sharma, Ms. Saumya Sharma, Advs. for the Appellants.

Saurabh Kumar, Ms. Rose Maria Sebi, Faisal Sherwani, Rajiv Shankar Dwivedi, Jayant Mohan, Ms. Meenakshi Chatterjee, Ms. Adya Shree Dutta, Advs. for the Respondents.

Judgment / Order of the Supreme Court

Judgment

Abhay S. Oka, J.

1.Leave granted.

FACTUAL ASPECTS

2.In substance, the appellants’ prayer in this appeal is to quash the criminal proceedings of a complaint filed by the second respondent, Ganesh Kumar Agiwal. The present appellants are the trustees of Sardar Bahadur Sir Inder Singh (Personal Estate) Trust (for short, “the Trust”). The present appellants and one Gurdev Singh, as the trustees of the said Trust, entered into two separate agreements for sale dated 29th January 2001 (for short “the agreements”) in favour of the second respondent and one Uma Shankar Agiwal. In the agreements, the second respondent and Uma Shankar were described as the partners of Sri Mahakaleshwar Enterprises (for short, “the firm”). They entered into the agreements on behalf of the firm. Uma Shankar is the real brother of the second respondent.

3.The second respondent and his brother Uma Shankar filed a suit for specific performance of the agreements against the appellants in the year 2005. On 8th May 2007, Uma Shankar filed an application in the pending suit stating that the entire advance of Rs.28,01,000/- paid by him and the second respondent has been received back from the appellants by way of a Demand Draft, and in addition, the second respondent and Uma Shankar received a sum of Rs.5,00,000/- by a pay order. Therefore, Uma Shankar prayed for permission to withdraw the suit.

4.On 28th June 2007, the second respondent filed a complaint bearing C/1 Case No.1027 of 2007 under Section 200 of the Code of Criminal Procedure, 1973 (for short, ‘the Cr. PC’) against the appellants and others before the Chief Judicial Magistrate, Jamshedpur, alleging the commission of offences punishable under Sections 420, 406, 424 and 120-B of the Indian Penal Code, 1860 (for short, ‘the IPC’). The foundation of the complaint was the sale transaction of property in the form of the agreements. In the complaint, Uma Shankar was shown as the first accused, and the present appellants were shown as the second and third accused. In the complaint, the second respondent referred to the application dated 8th May 2007 for withdrawing the suit filed by Uma Shankar. He alleged that this was done without his knowledge by Uma Shankar in connivance with the appellant. He alleged that he had paid the entire advance to the appellants. The allegation is that the appellants failed to execute the sale deeds notwithstanding the agreements. Cognizance was taken by a criminal Court based on the above complaint on 19th July 2007. It must be noted here that the second respondent filed, more or less, a similar complaint under Section 200 of the Cr.PC against the appellants on 31st July 2007. The second respondent’s subsequent complaint bearing Case No.1248 of 2007 was dismissed by the learned Judicial Magistrate by the order dated 14th September 2009, in the exercise of power under Section 203 of the Cr.PC by holding that no case was made out against the appellants.

5.Uma Shankar was transposed as a defendant in the suit for specific performance, who filed a written statement contending that the entire consideration paid to the appellants with compensation for delayed payment has been returned. On 11th November 2008, the second respondent filed an application in the pending suit, contending that there was a settlement between the parties and that the second respondent has no right, title or interest in the suit properties. Therefore, he prayed for a grant of permission to withdraw the suit. By the order dated 27th November 2008, the learned Trial Judge dismissed the suit for specific performance as withdrawn.

6.In the first complaint bearing Case No.1027 of 2007, the appellants applied under Section 245 of the Cr.PC for discharge on the grounds of compromise. The application for discharge was rejected by the learned Judicial Magistrate, First Class, Jamshedpur, by the order dated 28th August 2012. The appellants preferred a criminal revision application against the order before the High Court of Jharkhand at Ranchi. The High Court dismissed the criminal revision application. The High Court declined to look into the application for withdrawal of the suit made by the second respondent, and the consequent order passed on the said application by the Trial Court on the ground that at the time of framing of the charge, the accused had no right to produce any documents. The Special Leave Petition filed before this Court by the appellants against the orders of the Trial Court and the High Court was withdrawn with liberty to avail such remedies as may be available.

7.Thereafter, the appellants invoked a remedy before the High Court by filing a substantive writ petition under Article 226 of the Constitution of India for quashing the first criminal complaint. By the impugned order, the High Court dismissed the said writ petition on the ground that the same contentions had been rejected in an earlier criminal revision application, which cannot be re-agitated. Therefore, there was a bar under Article 362 of the Cr. PC.

SUBMISSIONS

8.The learned senior counsel appearing for the appellants has taken us through the copy of the plaint, the application for withdrawal made by the second respondent and the order passed thereon by the learned Trial Court. He submitted that the High Court had adopted a very hyper-technical approach. He submitted that the learned Judicial Magistrate dismissed the second complaint filed by the second respondent by holding that no case was made out to proceed. He submitted that after the second respondent received all the money he had paid under the agreements for sale, the prosecution of the first complaint was nothing but an abuse of the process of law.

9.The learned counsel appearing for the second respondent supported the impugned order and submitted that the High Court was correct in not allowing the appellants to re-open the issue, which was closed by the order passed in the earlier criminal revision application filed by the appellants. The learned counsel appearing for the respondent state also supported the impugned order.

CONSIDERATION OF SUBMISSIONS

10.The agreements for sale were executed by the appellants and another Trustee of the said Trust for the sale of two properties described as Schedule ‘A’ and Schedule ‘B’ and for consideration of Rs.2.75 crores and Rs.1.50 crores, respectively. The averments made in paragraph 3 of the suit filed by the second respondent and his brother, Uma Shankar, disclose that they paid the earnest money of Rs.28,01,000/- to the appellants by separate demand drafts. The allegation in the suit is that by another agreement dated 17th February 2004, the appellants agreed to execute and register the sale deed in favour of the second respondent and his brother regarding the properties subject matter of the agreements. According to the case of the second respondent and his brother, the suit for specific performance was filed as the appellants refused to execute the deed.

11.In the first complaint (subject matter of this appeal) bearing C/1Case No.1027 of 2007 filed by the second respondent, the facts stated in the plaint have been reiterated. It is alleged that the appellants have refused to execute the sale deed. It is claimed that as TISCO Ltd. had objected to the execution of the sale deed in terms of the agreements, a fresh agreement was executed on 17th February 2004 on request made by the appellants. After that, the second respondent referred to a suit for specific performance. It is alleged in the complaint that the first appellant herein had executed a power of attorney in favour of one Kishan, who was the fifth accused and subsequently, on 23rd October 2005, the first appellant transferred the property symbolically in favour of one Ashish, who was the fourth accused. After that, there is a reference in the complaint to the application dated 8th May 2007 made by Uma Shankar to withdraw the suit for specific performance. The application is alleged to be a false document that Uma Shankar created by entering a conspiracy with the present appellants. Therefore, the offences punishable under Sections 468, 420, 406, 424 and Section 120-B of the IPC were alleged. Cognizance was taken on the said complaint by the Criminal Court. Uma Shankar was transposed as a defendant in the suit for specific performance.

12.What is material here is the application dated 11th November 2008, admittedly filed by the second respondent as a plaintiff in the suit for specific performance. Paragraphs 2 and 3 of the said application read thus:

“ .. .. .. .. .. .. .. .. .. .. .. .. .. ..

2. That henceforthwith the plaintiff has got no manner of right, title, interest and possession over the suit properties of this suit any more he will lay any claim in any manner whatsoever over the suit properties of this suit in future.

3. That in view of the aforesaid facts and circumstances the plaintiff does not want to proceed further in this suit and wants to withdraw the same.

.. .. . .. … .. .. .. .. .. .. .. .. . … ...”

(emphasis added)

On 27th November 2008, the Trial Court allowed the application and disposed of the suit as withdrawn. In the said order, the Trial Court specifically recorded that the second respondent had signed the application. The second respondent never challenged the order permitting withdrawal of the suit passed on 27th November 2008.

13.The second complaint bearing no.1248 of 2007 was filed by the second respondent, showing the appellants as accused nos.1 and 2 and Ashish and Kishan as accused nos.3 and 4, respectively, who were shown as accused nos.4 and 5 in the first complaint. By the detailed order dated 14th September 2009, the learned Judicial Magistrate held that no prima facie case was made out in the complaint. He also noted that the suit for specific performance was pending. The allegations in the second complaint were again based on the same agreements for sale. It is alleged that the accused conspired to cheat the second respondent.

14.Now, we come to the prayer made for discharge by the appellants in the second complaint. The order of the learned Judicial Magistrate dated 28th August 2012 does not refer to the subsequent development of the second respondent withdrawing the suit based on the application dated 11th November 2008. In the criminal revision application preferred against the said order by the appellants, the subsequent events were pointed out regarding the settlement and withdrawal of the suit for specific performance. However, the High Court did not consider the said events by relying upon the law laid down by this Court in its decision in the case of State of Orissa v. Debendra Nath Padhi 1. The High Court held that the accused was not entitled to produce documents at the stage of the framing charge. As noted earlier, the special leave petition filed by the appellants against the said order was withdrawn with the liberty to adopt appropriate remedies as available.

15.Under the liberty granted by this Court, a writ petition under Article 226 of the Constitution of India was preferred by the appellants, in which the first prayer was for quashing the first complaint on the ground that in view of the compromise in the suit, the continuation of the complaint was a complete abuse of the process of law. We have perused the impugned order of the High Court. What the High Court lost sight of was that it was a substantive petition under Article 226 of the Constitution of India for quashing the complaint on the ground that the continuation of the same was an abuse of the process of law. A prayer was made in the petition for quashing the order passed by the learned Judicial Magistrate, by which the application for discharge, made by the appellants, was rejected. In the earlier criminal revision application, the High Court had confirmed the order dismissing the application for discharge. The criminal revision application was rejected on the ground that the documents relied upon by the appellants regarding the settlement in the suit with the second respondent and disposal of the suit could not be considered while considering the prayer for discharge. While passing the impugned order, the High Court relied upon Section 362 of the Cr.PC, which reads thus:

“362. Court not to alter judgment.— Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.”

The second prayer in the writ petition could have been hit by Section 362 of the Cr.PC, as the prayer was to quash the order on the application for discharge. But the first prayer was for quashing the complaint itself. Therefore, dismissing the first prayer in the writ petition on the ground of the bar of Section 362 of the Cr.PC was erroneous.

16.We have already quoted what the second respondent stated in the application dated 11th November 2008. He categorically stated that in view of the out-of-court settlement with the appellants, he would not lay any claim in any manner whatsoever over the suit properties. The second respondent never disputed the correctness of what is stated in the said application, and the order passed permitting the withdrawal of the suit. The second respondent did not challenge the order permitting withdrawal by filing any proceedings. When the second respondent stated that he would not lay any claim in any manner whatsoever over the suit properties, he gave up his claim under the agreements dated 29th January 2001. The primary grievance in the first complaint was that notwithstanding the said agreements, the appellants tried to transfer the properties to the co-accused and created a false application for withdrawal of the suit dated 8th May 2007, which was, in fact, the creation of Uma Shankar, brother of the second respondent.

17.As the second respondent had given up his rights under the agreements, it is crystal clear that continuing the complaint would be nothing but an abuse of the process of law. Therefore, a case was made out to quash the complaint. The High Court fell in error in refusing to do so.

18.Accordingly, the appeal succeeds, and we quash C/1 Case No.1027 of 2007, pending before the Court of the learned Judicial Magistrate, First Class, Jamshedpur.

Result of the case: Appeal allowed.

1 [2004] Supp. 6 SCR 460 : (2005) 1 SCC 568

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Central Excise Act, 1944 – s.4A – Valuation of excisable goods with reference to retail sale price – When not applicable – Standards of Weight & Measures (Packaged Commodity) Rules, 1977 – rr.2 (q), (g), (x)(iii), 34 – HDPE (High-Density Polyethylene Bag) bags containing 100 poly packs containing 33 plus one smaller pack of chewing tobacco sold by the respondent, if was meant for retail sale and therefore be treated as a group package or it was a wholesale package not meant for retail sale: Held: In view of sub-section (1) of s.4A of the Excise Act, the question is whether there was any requirement in the 1977 Rules to declare the retail sale price of the commodity on the package – What is relevant is whether the package is of such nature that attracts any of the provisions of the 1977 Rules, which mandatorily require the mention of retail price on the package – In case of a package that does not attract provisions of the 1977 Rules regarding mentioning the retail price, even if the retail price is mentioned on the package, that itself will not attract sub-section (1) of s.4A – However, on facts, there is no requirement to deal with the issue of whether a poly pack containing 33 plus one small package was intended for retail sale as the specific case made out by the respondent in reply to the show cause notices that it was selling HDPE bags containing 100 poly packs containing 33 plus one smaller pack was not rejected by the Commissioner – Therefore, the respondent was selling HDPE bags containing 100 poly packs each to the distributors and dealers – The 1977 Rules do not require the display of price on such HDPE bags – Even assuming that 100 poly packs were retail packages, HDPE bags would be covered by the definition of ‘wholesale package’ as defined in clause (iii) of r.2(x) of the 1977 Rules – Thus, the HDPE bags are not group packages within the meaning of r.2(g) – s.4A(1) of the Excise Act was not applicable to the goods subject matter of the show cause notices – Impugned judgment of the Tribunal not interfered with. [Paras 15-18]

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[2024] 7 S.C.R. 117 : 2024 INSC 470

Commissioner of Central Excise, Jaipur -II v. M/s Miraj Products Pvt. Ltd.

(Civil Appeal Nos. 143-147 of 2010)

08 July 2024

[Abhay S. Oka* and Pankaj Mithal, JJ.]

Issue for Consideration

Whether the commodity sold by the respondent-assessee will attract Section 4A of the Central Excise Act, 1944.

Headnotes

Central Excise Act, 1944 – s.4A – Valuation of excisable goods with reference to retail sale price – When not applicable – Standards of Weight & Measures (Packaged Commodity) Rules, 1977 – rr.2 (q), (g), (x)(iii), 34 – HDPE (High-Density Polyethylene Bag) bags containing 100 poly packs containing 33 plus one smaller pack of chewing tobacco sold by the respondent, if was meant for retail sale and therefore be treated as a group package or it was a wholesale package not meant for retail sale:

Held: In view of sub-section (1) of s.4A of the Excise Act, the question is whether there was any requirement in the 1977 Rules to declare the retail sale price of the commodity on the package – What is relevant is whether the package is of such nature that attracts any of the provisions of the 1977 Rules, which mandatorily require the mention of retail price on the package – In case of a package that does not attract provisions of the 1977 Rules regarding mentioning the retail price, even if the retail price is mentioned on the package, that itself will not attract sub-section (1) of s.4A – However, on facts, there is no requirement to deal with the issue of whether a poly pack containing 33 plus one small package was intended for retail sale as the specific case made out by the respondent in reply to the show cause notices that it was selling HDPE bags containing 100 poly packs containing 33 plus one smaller pack was not rejected by the Commissioner – Therefore, the respondent was selling HDPE bags containing 100 poly packs each to the distributors and dealers – The 1977 Rules do not require the display of price on such HDPE bags – Even assuming that 100 poly packs were retail packages, HDPE bags would be covered by the definition of ‘wholesale package’ as defined in clause (iii) of r.2(x) of the 1977 Rules – Thus, the HDPE bags are not group packages within the meaning of r.2(g) – s.4A(1) of the Excise Act was not applicable to the goods subject matter of the show cause notices – Impugned judgment of the Tribunal not interfered with. [Paras 15-18]

Case Law Cited

M/s.Varnica Herbs v. Central Board of Excise & Customs, New Delhi, 2004 (163) ELT 160 (Madras); Commissioner of Central Excise, Vapi v. Kraftech Products Inc. [2008] 5 SCR 251 : (2008) 12 SCC 321 – referred to.

List of Acts

Central Excise Act, 1944; Standards of Weight & Measures (Packaged Commodity) Rules, 1977.

List of Keywords

Excisable goods; Excise duty; Customs, Excise and Service Tax Appellate Tribunal; Show cause notices; Retail Sale; Retail sale price; Chewing tobacco; Poly packs; HDPE bags; Retail packages, Group packages; Wholesale package; MRP on poly packs; Retail sale of the poly packs; Display of price; Retail dealers; Retail price of the goods; Packages intended for retail sale; Declaration of retail sale price of the commodity on package.

Case Arising From

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 143-147 of 2010

From the Judgment and Order dated 07.11.2008 of the Customs, Excise and Service Tax Appellate Tribunal, Principal Bench, New Delhi in Final Order Nos.861-865 of 2008 in Appeal Nos. E/3675, 3313/2005 – Ex. [DB] & 245/06 & 979-980/07

Appearances for Parties

Ms. Nisha Bagchi, Ms. B. Sunita Rao, Ms. Gunmaya S. Mann, Tarun Kumar Sobti, Shambhavi Singh, Mukesh Kumar Maroria, Siddhant Kohli, Ms. Chinmayee Chandra, Ms. Aakansha Kaul, Shiv Mangal Sharma, Rupesh Kumar, Randhir Singh, Advs. for the Appellant.

V. Lakshmikumaran, Ms. Charanya Lakshmikumaran, Ms. Apeksha Mehta, Ms. Neha Choudhary, Ms. Falguni Gupta, Ms. Umang Motiyani, M.P. Devanath, Punit Dutt Tyagi, Advs. for the Respondent.

Judgment / Order of the Supreme Court

Judgment

Abhay S. Oka, J.

FACTUAL DETAILS

1.These appeals take exception to the judgment and order dated 7th November 2008 passed by the Customs, Excise and Service Tax Appellate Tribunal (for short, ‘the Tribunal’). The issue involved, in short, is whether the goods sold by the respondent-assessee are covered by Section 4 or Section 4A of the Central Excise Act, 1944 (for short, ‘The Excise Act’). The proceedings commenced based on the show cause notices issued to the respondent-assessee. The first show cause notice issued on 22nd April 2004, pertains to a brief period in April 2003. The second show cause notice is of 31st May 2004 covering the period from May 2003 till December 2003. By a notification dated 1st March 2002 issued under sub-section (1) of Section 4A of the Excise Act, tobacco was notified by including the same at Sr.no.24A in the Notification with effect from 1st March 2003. The allegations made in both the show cause notices are similar. The show cause notice dated 22nd April 2004 was supplemented by an addendum dated 10th June 2004. The allegation against the respondent-assessee in the show cause notices was that the assessee was packing 33 pouches of 6 gms each of chewing tobacco and one pouch of 15 gms of chewing tobacco in a larger poly pack. It is alleged that MRP (maximum retail price) of Rs. 1 per pouch is mentioned on the pouches carrying a quantity of 6 gms, and MRP of Rs. 3 was mentioned on the pouch carrying 15 gms quantity. It is alleged that on the larger poly pack, a weight of 213 gms and MRP of Rs. 36 was mentioned. It is alleged in the show cause notice that the larger poly packs are group packages as defined in Rule 2(g) of the Standards of Weight & Measures (Packaged Commodity) Rules, 1977 (for short, ‘the said Rules’). It is alleged that the group package made by the respondent was intended for retail sale. Further allegation in the show cause notice is that the weight of each group package exceeds 10 gms. Therefore, the group packages of the respondent-assessee are not covered by the exemption under Rule 34(b) of the said Rules. Reliance was placed on a decision of the Madras High Court in the case of M/s.Varnica Herbs v. Central Board of Excise & Customs, New Delhi 1. Therefore, the respondent-assessee was called upon to pay duty on the poly pack sold by the assessee in the manner provided under Section 4A of the Excise Act. Apart from the differential duty, a demand was made for interest and penalty.

2.The respondent replied to the show cause notice by contending that 100 poly packs, each containing 33 small pouches of 6 gms each, and one pouch of 15 gms are being put into one HDPE bag (High-Density Polyethylene Bag). The quantity of 15 gms is kept in a zipper pouch, on which duty is paid under Section 4A of the Excise Act on MRP. A factual contention was raised in the reply by the respondent-assessee that it is not selling poly packs of 33 small pouches directly to the customers. It is stated that the assessee is clearing only HDPE bags containing 100 poly packs, and HDPE bags are being sold to distributors or dealers. Therefore, the assessee did not make a retail sale. It is contended by the respondent that poly packs containing 33 pouches of 6 gms quantity are not group packages within the meaning of Rule 2(g) of the said Rules, and the said poly packs and HDPE bags are wholesale packages as defined in Rule 2(x) of the said Rules. Therefore, the contention is that Section 4A will have no application.

3.After hearing the respondent, the order-in-original was passed by the Commissioner. By the said order dated 19th July 2005, the contentions raised by the respondent-assessee were rejected, and the demand made in the show cause notices was confirmed. The Commissioner referred to the declarations made on poly pack and held that it was in terms of Rule 16 of the said Rules, and Rule 16 is a part of Chapter II of the said Rules, which deals with retail sales. It was held that a declaration on the poly packs confirms the requirement of Rule 6 and Rule 16 of Chapter II of the said Rules, and therefore, poly packs were intended for retail sale. The order further records that the sale price was mentioned on the poly pack, which was not the requirement of Rule 29 of the said Rules, which deals with declarations on the wholesale packages. However, the Commissioner held that the assessee’s HDPE bags, which contain 100 larger poly pack packages and do not declare the sale price, would be wholesale packages. The Commissioner rejected the respondent’s contention that the poly packs were not sold in retail by holding that whether the manufacturer sold them in retail or not is relevant and what is material is whether the goods were intended for retail sale.

4.By the impugned judgment, the Tribunal held that the decision of the Madras High Court in the case of Varnica Herbs1 was not a binding precedent. The Tribunal relied upon a decision of this Court in the case of Commissioner of Central Excise, Vapi v. Kraftech Products Inc.2. The Tribunal proceeded to set aside the Commissioner’s order.

SUBMISSIONS

5.The learned counsel appearing for the appellant submitted that the decision of this Court in the case of Commissioner of Central Excise, Vapi2, has no application as the assessee in the said case was selling three sachets of 3 gms of hair dye in one pack. Learned counsel pointed out that thus the total weight of the pack was 9 gms, which was covered by the exemption under Section 34(b) of the said Rules. The learned counsel pointed out that the weight of poly packs and HDPE bags is much more than 10 gms in the present case. Learned counsel submitted that what was being sold by the respondent was a group package meant for retail sale, and therefore, Section 4A was rightly applied by the Commissioner. Learned counsel submitted that even otherwise, as the poly packs are not sold by weight or measure, Rule 34 (b) of the said Rules has no application. Learned counsel submitted that the Tribunal had not considered the factual position in this case, which the Commissioner considered in detail. Learned counsel further submitted that one pouch of 15 gms quantity of chewable tobacco forms part of the poly pack on which the respondent was admittedly paying duty in accordance with Section 4A of the Excise Act. Learned counsel has taken us through the relevant provisions of the said Rules.

6.The learned counsel representing the respondent supported the impugned judgment and urged that the principles laid down by this Court in the case of Commissioner of Central Excise, Vapi 2, will squarely apply. It was submitted that HDPE bags containing 100 poly packs containing 34 pouches was not meant for retail sale; therefore, it cannot be treated as a group package, and it has to be a wholesale package that is not meant for retail sale. Learned counsel submitted that there is no need to interfere with the impugned judgment, which takes the correct view.

CONSIDERATION OF SUBMISSIONS

7.It is not in dispute that the respondent is dealing with chewing tobacco. From 7th April 2003, the respondent started the practice of packing together 33 pouches of 6 gms each and one pouch of 15 gms of chewing tobacco in a larger poly pack. The Revenue contends that as the larger poly pack has weight and MRP printed on it, the same was a group package intended for retail sale. The case made out in the show cause notices is that the poly pack contains a quantity of more than 10 gms of chewing tobacco, and therefore, exemption under Rule 34(b) of the said Rules will not apply. As can be seen from Clause (b) of Rule 34 of the said Rules, the exemption will apply to any package containing a commodity if the net weight of the commodity is 10 gms or less and if the same is being sold by weight. The stand of the respondent-assessee in reply to the show cause notices is that though the poly packs may have MRP printed on it, it was never intended for retail sale. Moreover, the respondent was packing 100 poly packs in one HDPE bag, and the HDPE bags were sold to distributors. The weight of the chewing tobacco in one poly pack or HDPE bag is more than 10 gms. Therefore, Rule 34(b) of the said Rules has no application.

8.As far as facts are concerned, even in the order-in-original passed by the Commissioner, which was impugned before the Tribunal and in particular, clause (d) of paragraph 16, it is accepted that the respondent is packing 100 poly pack packages in one HDPE bag.

9.The real controversy is whether the commodity sold by the respondent will attract Section 4A of the Excise Act. Sub-section (1) of Section 4A of the Excise Act reads thus:

“Section 4A. Valuation of excisable goods with reference to retail sale price. –

(1) The Central Government may, by notification in the Official Gazette, specify any goods, in relation to which it is required, under the provisions of the Standards of Weights and Measure (PC) Rules, 1976 (60 of 1976) or the rules made thereunder or under any other law for the time being in force, to declare on the package thereof the retail sale price of such goods, to which the provisions of sub-section (2) shall apply.”

(emphasis added)

10.In the facts of the case, chewable tobacco has been notified under sub-section (1) of Section 4A. The question is whether the provisions of the said Rules framed under the Standards of Weights and Measure (PC) Rules, 1977, require a declaration of retail sale on the packages of the respondent. In short, the controversy is whether the packages made by the respondent-assessee are such that under the said Rules, there is a requirement to declare the retail price of the goods on the packages.

11.Now, we turn to the said Rules. Chapter II of the said Rules deals with the provisions applicable to packages intended for retail sale. Retail sale is defined in Rule 2(q) of the said Rules, which reads thus:

“(q) “retail sale” in relation to a commodity, means the sale, distribution or delivery of such commodity through retail sales agencies or other instrumentalities for consumption by an individual or group of individuals or any other consumer;”

Therefore, to attract the definition of retail sale, a commodity has to be sold, distributed, or delivered for consumption by an individual, a group of individuals, or any other consumer. Thus, the sale or distribution of a commodity to a dealer who, in turn, sells the commodity to retail dealers will not be a retail sale.

12.Rule 2(g) defines group package which reads thus:

“2(g) “group package” means a package intended for retail sale, containing two or more individual packages, or individual pieces, of similar, but not identical (whether in quantity or size), commodities;

Explanation.- Commodities which are generally the same but differ in weight, measure or volume, appearance or quality are similar but not identical commodities;”

Therefore, a package can become a group package, provided it is intended for retail sale. In this case, there is no dispute that the respondent’s poly packs and HDPE bags contain more than 2 individual packages of similar commodities but are not identical in quantity. The question is whether the package made by the respondent was intended for retail sale.

13.Rule 2(x) of the said Rule defines “wholesale package”, which reads thus:

“(x) “wholesale package” means a package containing-

(i) a number of retail packages, where such first mentioned package is intended for sale, distribution or delivery to an intermediary and is not intended for sale direct to a single consumer; or

(ii) a commodity sold to an intermediary in bulk to enable such intermediary to sell, distribute or deliver such commodity to the consumer in smaller quantities; or

(iii) packages containing ten or more than ten retail packages provided that the retail packages are labelled as required under the rules.”

14.Now, we turn to the order-in-original and the findings recorded therein. The Commissioner held that Rules 6 and 16 form a part of Chapter II of the said Rules and, therefore, apply to the packages intended for retail sale. The Commissioner found that the poly packs contained a declaration in terms of both Rule 6 and Rule 16. The Commissioner referred to the format of declaration to be made under Rule 29, which is a part of Chapter IV of the said Rules, which did not apply to packages intended for retail sale. The Commissioner held that Rule 29 does not require a declaration of sale price on the wholesale package. The Commissioner found that the poly pack containing 33 plus one small packages contained a declaration of the price. Therefore, the Commissioner held that the poly packs were intended for retail sale. Otherwise, there was no reason to mention MRP on the poly packs. The Commissioner held that the intention to make retail sale of the poly packs was clear, and, therefore, whether poly packs were sold by way of retail sale was irrelevant.

15.As noted earlier, in view of sub-section (1) of Section 4A, the question is whether there is any requirement in the said Rules to declare the retail sale price of the commodity on the package. What is relevant is whether the package is of such nature that attracts any of the provisions of the said Rules, which mandatorily require the mention of retail price on the package. In case of a package that does not attract provisions of the said Rules regarding mentioning the retail price, even if the retail price is mentioned on the package, that itself will not attract sub-section (1) of Section 4A of the Excise Act.

16.However, on facts, we may not be required to deal with the issue of whether a poly pack containing 33 plus one small package was intended for retail sale. The reason is that the specific case made out by the respondent in reply to the show cause notices was that the respondent was selling HDPE bags containing 100 poly packs containing 33 plus one smaller pack has not been rejected by the Commissioner. In fact, the Commissioner seems to have accepted the contention, as seen from Clause (d) of paragraph 16 of the order-in-original. In clause (d), the Commissioner held thus:

“(d) Further the intentions of the assessee that HDPE bag is a wholesale package and the larger polypack packages are group packages intended for retail sale is also expressed from the fact that there is no requirement under Rule 29 of the Standards of Weights & Measures (Packaged Commodities), Rules, 1977 of mentioning sale price or unit sale price or the MRP on a wholesale package whereas their larger polypack package contains the declaration “MAX UNIT SALE PRICE” and they are not declaring sale price on HDPE bag (it has also been admitted by them in the reply to Show Cause Notice that their HDPE bag is a wholesale package), therefore, this larger polypack package containing the declaration “MAX UNIT SALE PRICE” cannot be considered as a wholesale package but can be considered only a group package intended for retail sale. Only the HDPE bag of the assessee, which contains 100 larger polypack packages and does not contain declaration of sale price, would be a wholesale package.”

(emphasis added)

17.In so many words, the Commissioner held that an HDPE bag containing 100 poly packs does not contain a declaration of selling price and therefore, it would be a wholesale package. There is no finding recorded that what is distributed or sold by the respondent is a poly pack containing 33 plus one small pack. The respondent’s case that 100 poly pack packages are being put in one HDPE bag has been accepted by the Commissioner. Therefore, the respondent is selling HDPE bags containing 100 poly packs each to the distributors and dealers. The said Rules do not require the display of price on such HDPE bags. Even assuming that 100 poly packs were retail packages, HDPE bags would be covered by the definition of ‘wholesale package’ as defined in clause (iii) of Rule 2(x) of the said Rules. Thus, the HDPE bags are not group packages within the meaning of Rule 2(g).

18.Though the impugned judgment is not satisfactorily worded, for the reasons which were recorded above, the ultimate conclusion recorded in the impugned judgment that Section 4A(1) of the Excise Act was not applicable to the goods subject matter of the show cause notices, cannot be faulted with. Hence, there is no reason to interfere with the impugned judgment.

19.Accordingly, the appeals are dismissed with no order as to costs.

Result of the case: Appeals dismissed.

1 2004 (163) ELT 160 (Madras)

2 [2008] 5 SCR 251 : (2008) 12 SCC 321

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Constitution of India – Art. 21 – Narcotic Drugs and Psychotropic Substances Act, 1985 – Code of Criminal Procedure, 1973 – Terms and conditions in a bail – A condition of dropping pin on Google Map: Held: In an affidavit, Google LLC stated that the user has full control over sharing PINs with other users – It does not impinge on the user’s privacy, as the user retains full control – Most importantly, it is stated that the PIN location does not enable real-time tracking of the user or the user’s device – Therefore, the condition of the accused dropping a pin on Google Maps, as it stands, is completely redundant as the same does not help the first respondent-Narcotics Control Bureau (NCB) – Imposing any bail condition which enables the Police/Investigation Agency to track every movement of the accused released on bail by using any technology or otherwise would undoubtedly violate the right to privacy guaranteed under Article 21 – In the instant case, the condition of dropping a PIN on Google Maps has been incorporated without even considering the technical effect of dropping a PIN and the relevance of the said condition as a condition of bail – This cannot be a condition of bail – Accordingly, the condition is ordered to be deleted. [Paras 10.1, 10.2]

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[2024] 7 S.C.R. 97 : 2024 INSC 479

Frank Vitus v. Narcotics Control Bureau & Ors.

(Criminal Appeal No. 2814-2815 of 2024)

08 July 2024

[Abhay S. Oka* and Ujjal Bhuyan, JJ.]

Issue for Consideration

The appellant was ordered to be enlarged on bail subject to various terms and conditions incorporated in the said order. The petitioner is aggrieved by the two conditions imposed while granting bail. The two conditions are as follows: (i) A certificate of assurance from the High Commission of Nigeria is to be placed on record that the applicants/accused shall not leave the country and shall appear before the Special Judge as and when required; (ii) Accuse shall drop a PIN on the google map to ensure that their location is available to the Investigation Officer of the case.

Headnotes

Constitution of India – Art. 21 – Narcotic Drugs and Psychotropic Substances Act, 1985 – Code of Criminal Procedure, 1973 – Terms and conditions in a bail – A condition of dropping pin on Google Map:

Held: In an affidavit, Google LLC stated that the user has full control over sharing PINs with other users – It does not impinge on the user’s privacy, as the user retains full control – Most importantly, it is stated that the PIN location does not enable real-time tracking of the user or the user’s device – Therefore, the condition of the accused dropping a pin on Google Maps, as it stands, is completely redundant as the same does not help the first respondent-Narcotics Control Bureau (NCB) – Imposing any bail condition which enables the Police/Investigation Agency to track every movement of the accused released on bail by using any technology or otherwise would undoubtedly violate the right to privacy guaranteed under Article 21 – In the instant case, the condition of dropping a PIN on Google Maps has been incorporated without even considering the technical effect of dropping a PIN and the relevance of the said condition as a condition of bail – This cannot be a condition of bail – Accordingly, the condition is ordered to be deleted. [Paras 10.1, 10.2]

Narcotic Drugs and Psychotropic Substances Act, 1985 – Code of Criminal Procedure, 1973 – Terms and conditions in a bail – A condition of furnishing certificate of the Embassy:

Held: It is not necessary that in every case where bail is granted to an accused in an NDPS case who is a foreign national on the ground of long incarceration of more than 50% of the minimum sentence, the condition of obtaining a ‘certificate of assurance’ from the Embassy/High Commission should be incorporated – It will depend on the facts of each case – Even if such a condition is incorporated, on an application made by the accused, the concerned Embassy/High Commission declines or fails to issue the certificate within a reasonable time, say within a period of seven days, the Court always has the power to dispense with the said condition – Grant of such a certificate by the Embassy/High Commission is beyond the control of the accused to whom bail is granted – Therefore, when the Embassy/High Commission does not grant such a certificate within a reasonable time, as explained above, the accused, who is otherwise held entitled to bail, cannot be denied bail on the ground that such a condition, which is impossible for the accused to comply with, has not been complied with – Hence, the Court will have to delete the condition – Instead of the condition of obtaining such a certificate, the condition of surrendering the passport and regularly reporting to the local police station/Trial Court can always be imposed, depending upon the facts of each case – Accordingly, in the instant case, the said condition of furnishing certificate of the Embassy is ordered to be deleted. [Paras 11.1, 12]

Narcotic Drugs and Psychotropic Substances Act, 1985 – s.37 and s.52 – Code of Criminal Procedure, 1973 – s.437(3) – Application of CrPC to the arrests made under NDPS:

Held: Under Section 37 of the NDPS Act, the Court’s power to grant bail is constrained by Sub-section 1(b)(ii) – However, once a case is made out for a grant of bail in accordance with Section 37, the conditions of bail will have to be in terms of Section 437(3) of the CrPC – The reason is that because of Section 52 of the NDPS Act, the provisions of the CrPC apply to the arrests made under the NDPS Act insofar as they are not inconsistent with the NDPS Act. [Para 4.1]

Code of Criminal Procedure, 1973 – s.437(3) – Meaning of the words “interest of justice”:

Held: A broader meaning cannot be assigned to the words “interest of justice” in Section 437(3) of CrPC – By borrowing the language used by the Supreme Court in its earlier decisions, it is clear that the bail conditions cannot be fanciful, arbitrary or freakish – The object of imposing conditions of bail is to ensure that the accused does not interfere or obstruct the investigation in any manner, remains available for the investigation, does not tamper with or destroy evidence, does not commit any offence, remains regularly present before the Trial Court, and does not create obstacles in the expeditious conclusion of the trial – The conditions incorporated in the order granting bail must be within the four corners of Section 437(3) – The bail conditions must be consistent with the object of imposing conditions – While imposing bail conditions, the Constitutional rights of an accused, who is ordered to be released on bail, can be curtailed only to the minimum extent required – Even an accused convicted by a competent Court and undergoing a sentence in prison is not deprived of all his rights guaranteed by Article 21 of the Constitution. [Para 7]

Case Law Cited

Kunal Kumar Tiwari v. State of Bihar (2018) 16 SCC 74; Munish Bhasin v. State (NCT of Delhi) [2009] 2 SCR 806 : (2009) 4 SCC 45; State of A.P. v. Challa Ramkrishna Reddy [2000] 3 SCR 644  : (2000) 5 SCC 712 – relied on.

Supreme Court Legal Aid Committee Representing Undertrial Prisoners v. Union of India & Ors. [1994] Supp. 4 SCR 386 : (1994) 6 SCC 731; Tofan Singh v. State of Tamil Nadu [2020] 12 SCR 583 : (2021) 4 SCC 1 – referred to.

List of Acts

Constitution of India; Narcotic Drugs and Psychotropic Substances Act, 1985; Code of Criminal Procedure, 1973.

List of Keywords

Bail; Terms and conditions in a bail; Section 437(3) of Code of Criminal Procedure, 1973; Section 37 of Narcotic Drugs and Psychotropic Substances Act, 1985; Section 52 of Narcotic Drugs and Psychotropic Substances Act, 1985; Meaning of the words “interest of justice” in section 437(3) of Code of Criminal Procedure, 1973; A condition of dropping pin on Google Map in a bail; A condition of furnishing certificate of the Embassy in a bail; Article 21 in the Constitution of India; Right to privacy.

Case Arising From

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal Nos. 2814-2815 of 2024

From the Judgment and Order dated 31.05.2022 and 18.08.2022 of the High Court of Delhi at New Delhi in BA No. 4187 of 2020

Appearances for Parties

Varun Mishra, Adv. for the Appellant.

Vinay Navare, Sr. Adv., Amicus Curiae.

Vikramjit Banerjee, A.S.G., Venkata Raghu Vamsy Dasika, Upendra Mishra, Rahul G Tanwani, Prasenjeet Mohapatra, Arvind Kumar Sharma, Gurmeet Singh Makker, Prashant Rawat, Advitiya Awasthi, Annirudh Sharma-ii, Ashok Panigrahi, Raj Bahadur Yadav, Abhishek Singh, M/S. Trilegal Advocates On Record, Lzafeer Ahmad B. F., Anuj Berry, Ms. Anusha Ramesh, Ms. Karishma Sundara, Aparajita Sen, Ms. Muskan Wadhwa, Advs. for the Respondents.

Judgment / Order of the Supreme Court

Order

Abhay S. Oka, J.

1.Leave granted.

FACTUAL ASPECTS

2.The appellant is being prosecuted for the offences punishable under Sections 8, 22, 23, and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (short ‘NDPS Act’). The appellant was arrested on 21st May 2014. By the first impugned order dated 31st May 2022, the appellant was ordered to be enlarged on bail subject to various terms and conditions incorporated in the said order. The terms and conditions incorporated were in terms of the directions issued by this Court in paragraph no.15 of its decision in the case of Supreme Court Legal Aid Committee Representing Undertrial Prisoners v. Union of India & Ors.1. The appellant was ordered to be enlarged on bail on his furnishing a bail bond in the sum of Rs.1,00,000/- with two sureties in the like amount to the satisfaction of the learned Special Judge under the NDPS.

3.The grievances in this appeal have been summed up in the order dated 21st July 2023 passed by this Court, which reads thus:

“The petitioner is aggrieved by the following condition imposed while granting bail:

“.. the learned Special Judge, NDPS seized of the trial in SC No.27/14 shall ensure that the certificate of assurance from the High Commission of Nigeria is placed on record that the applicants/accused shall not leave the country and shall appear before the learned Special Judge as and when required, in as much as, the complaint filed by the Narcotics Control Bureau under Sections 8/22/23/29 of the NDPS Act, 1985 indicates that the appellants are residents of Nigeria..”

In the case of Supreme Court Legal Aid Committee vs. vs Union Of India [ (1994) 6 SCC 731] Clause (iv) reads as under:

“(iv)in the case of undertrial accused who are foreigners, the Special Judge shall, besides impounding their passports, insist on a certificate of assurance from the Embassy/High Commission of the country to which the foreigner-accused belongs, that the said accused shall not leave the country and shall appear before the Special Court as and when required;”

Prima facie, we are of the view that none of the Embassies/High Commissions may be able to give assurances as mentioned in Clause (iv). The question is whether we need to refer this case to a larger Bench for re-consideration of Clause (iv).

Another condition imposed by the High Court reads thus:

“… they shall drop a PIN on the google map to ensure that their location is available to the Investigation Officer of the case;...”

The question is whether this condition will offend rights of the accused under Article 21 of the Constitution of India.

We request Mr. Vinay Navare, learned Senior Advocate to assist us as amicus curiae on both the issues. Registry to provide a complete set of paper book to the learned Senior Counsel as well as a copy of this order.

List on 14.08.2023.”

3.1We have heard Shri Vinay Navare, the learned senior counsel appointed as Amicus Curiae, Shri Varun Mishra, the learned counsel appearing for the appellant and Shri Vikramjeet Banerjee, the learned Additional Solicitor General of India for the first respondent-Narcotics Control Bureau.

CONDITIONS OF BAIL

4.Section 439 of the Code of Criminal Procedure,1973 (for short, ‘the CrPC’) deals with the power of a Court of Sessions or a High Court to grant bail in non-bailable offences. We are reproducing Section 439 for ready reference:

“439. Special powers of High Court or Court of Session regarding bail.—(1) A High Court or Court of Session may direct—

(a) that any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in sub-section (3) of Section 437, may impose any condition which it considers necessary for the purposes mentioned in that sub-section;

(b) that any condition imposed by a Magistrate when releasing any person on bail be set aside or modified:

Provided that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence which is triable exclusively by the Court of Session or which, though not so triable, is punishable with imprisonment for life, give notice of the application for bail to the Public Prosecutor unless it is, for reasons to be recorded in writing, of opinion that it is not practicable to give such notice:

[Provided further that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence triable under sub-section (3) of Section 376 or Section 376-AB or Section 376-DA or Section 376-DB of the Indian Penal Code (45 of 1860), give notice of the application for bail to the Public Prosecutor within a period of fifteen days from the date of receipt of the notice of such application.]

[(1-A) The presence of the informant or any person authorised by him shall be obligatory at the time of hearing of the application for bail to the person under sub-section (3) of Section 376 or Section 376-AB or Section 376-DA or Section 376-DB of the Indian Penal Code (45 of 1860)].

(2) A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody.”

Section 437(3) reads thus:

“437. When bail may be taken in case of non-bailable offence.—

(1) …………………………………………………

(2)…………………………………………………

(3) When a person accused or suspected of the commission of an offence punishable with imprisonment which may extend to seven years or more or of an offence under Chapter VI, Chapter XVI or Chapter XVII of the Indian Penal Code (45 of 1860) or abetment of, or conspiracy or attempt to commit, any such offence, is released on bail under sub-section (1), the [Court shall impose the conditions,—

(a) that such person shall attend in accordance with the conditions of the bond executed under this Chapter,

(b) that such person shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected, and

(c) that such person shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer or tamper with the evidence,

and may also impose, in the interests of justice, such other conditions as it considers necessary.]

(4) …………………………………………”

4.1In this case, we are concerned with the offences under the NDPS Act which are punishable with imprisonment of seven years or more. The provision relating to bail is contained in Section 37 of the NDPS Act, which reads thus:

“37. Offences to be cognizable and non-bailable.—(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),—

(a) every offence punishable under this Act shall be cognizable;

(b) no person accused of an offence punishable for [offences under Section 19 or Section 24 or Section 27-A and also for offences involving commercial quantity] shall be released on bail or on his own bond unless—

(i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and

(ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.

(2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974), or any other law for the time being in force on granting of bail]”

Under Section 37 of the NDPS Act, the Court’s power to grant bail is constrained by Sub-section 1(b)(ii). However, once a case is made out for a grant of bail in accordance with Section 37, the conditions of bail will have to be in terms of Section 437(3) of the CrPC. The reason is that because of Section 52 of the NDPS Act, the provisions of the CrPC apply to the arrests made under the NDPS Act insofar as they are not inconsistent with the NDPS Act.

5.Apart from conditions (a) to (c) in Section 437(3) of the CrPC, there is a power to impose additional conditions “in the interest of justice”. The scope of the concept of “interest of justice” in Section 437(3) of the CrPC has been considered by this Court in the case of Kunal Kumar Tiwari v. State of Bihar2. In paragraph 9, this Court held thus:

“9. There is no dispute that clause (c) of Section 437(3) allows courts to impose such conditions in the interest of justice. We are aware that palpably such wordings are capable of accepting broader meaning. But such conditions cannot be arbitrary, fanciful or extend beyond the ends of the provision. The phrase “interest of justice” as used under the clause (c) of Section 437(3) means “good administration of justice” or “advancing the trial process” and inclusion of broader meaning should be shunned because of purposive interpretation.”

(emphasis added)

6.In view of Section 438(2)(iv) of the CrPC, while granting anticipatory bail, the Court is empowered to impose the conditions as provided in Section 437(3) of the Cr. PC. While dealing with the condition which can be imposed while granting anticipatory bail, this Court, in the case of Munish Bhasin v. State (NCT of Delhi)3, held thus:

“10. It is well settled that while exercising discretion to release an accused under Section 438 of the Code neither the High Court nor the Sessions Court would be justified in imposing freakish conditions. There is no manner of doubt that the court having regard to the facts and circumstances of the case can impose necessary, just and efficacious conditions while enlarging an accused on bail under Section 438 of the Code. However, the accused cannot be subjected to any irrelevant condition at all.”

(emphasis added)

7.A broader meaning cannot be assigned to the words “interest of justice” in Section 437(3) of Cr. PC. By borrowing the language used by this Court in the above decisions, we can say that the bail conditions cannot be fanciful, arbitrary or freakish. The object of imposing conditions of bail is to ensure that the accused does not interfere or obstruct the investigation in any manner, remains available for the investigation, does not tamper with or destroy evidence, does not commit any offence, remains regularly present before the Trial Court, and does not create obstacles in the expeditious conclusion of the trial. The Courts have imposed a condition that the accused should cooperate with the investigation when bail is granted before filing the final report or chargesheet. Cooperating with the investigation does not mean that the accused must confess. The conditions incorporated in the order granting bail must be within the four corners of Section 437(3). The bail conditions must be consistent with the object of imposing conditions. While imposing bail conditions, the Constitutional rights of an accused, who is ordered to be released on bail, can be curtailed only to the minimum extent required. Even an accused convicted by a competent Court and undergoing a sentence in prison is not deprived of all his rights guaranteed by Article 21 of the Constitution. This Court, in the case of State of A.P. v. Challa Ramkrishna Reddy,4 reiterated the settled position by holding as follows:

“22. Right to life is one of the basic human rights. It is guaranteed to every person by Article 21 of the Constitution and not even the State has the authority to violate that right. A prisoner, be he a convict or undertrial or a detenu, does not cease to be a human being. Even when lodged in the jail, he continues to enjoy all his fundamental rights including the right to life guaranteed to him under the Constitution. On being convicted of crime and deprived of their liberty in accordance with the procedure established by law, prisoners still retain the residue of constitutional rights.”

(emphasis added)

7.1.We are dealing with a case of the accused whose guilt is yet to be established. So long as he is not held guilty, the presumption of innocence is applicable. He cannot be deprived of all his rights guaranteed under Article 21. The Courts must show restraint while imposing bail conditions. Therefore, while granting bail, the Courts can curtail the freedom of the accused only to the extent required for imposing the bail conditions warranted by law. Bail conditions cannot be so onerous as to frustrate the order of bail itself. For example, the Court may impose a condition of periodically reporting to the police station/Court or not travelling abroad without prior permission. Where circumstances require, the Court may impose a condition restraining an accused from entering a particular area to protect the prosecution witnesses or the victims. But the Court cannot impose a condition on the accused to keep the Police constantly informed about his movement from one place to another. The object of the bail condition cannot be to keep a constant vigil on the movements of the accused enlarged on bail. The investigating agency cannot be permitted to continuously peep into the private life of the accused enlarged on bail, by imposing arbitrary conditions since that will violate the right of privacy of the accused, as guaranteed by Article 21. If a constant vigil is kept on every movement of the accused released on bail by the use of technology or otherwise, it will infringe the rights of the accused guaranteed under Article 21, including the right to privacy. The reason is that the effect of keeping such constant vigil on the accused by imposing drastic bail conditions will amount to keeping the accused in some kind of confinement even after he is released on bail. Such a condition cannot be a condition of bail.

8.In view of sub-section (2) of Section 441 of the CrPC, the conditions imposed by the Court while granting bail always stand incorporated in the bail bond executed by the accused. Therefore, the accused is bound by the conditions imposed while granting bail. If the accused, after being enlarged on bail, commits a breach of bail conditions or commits any offence, the Courts always have the power to cancel the bail.

9.A condition cannot be imposed while granting bail which is impossible for the accused to comply with. If such a condition is imposed, it will deprive an accused of bail, though he is otherwise entitled to it.

CONDITION OF DROPPING PIN ON GOOGLE MAP

10.Firstly, we will deal with the issue of the condition of dropping a PIN on Google Maps. The condition imposed on the appellant of dropping a PIN on Google Map gives an impression that the condition will enable the first respondent Narcotics Control Bureau (NCB) to monitor the movements of the accused on a real-time basis, which will be violative of the right to privacy guaranteed under Article 21 of the Constitution of India. To understand the technical aspects of “dropping a PIN on Google Map”, we issued a notice to Google LLC, having its office in the USA. Accordingly, Shri R. Suresh Babu, authorised signatory of Google LLC, has filed an affidavit. Paragraphs 5 to 10 of his affidavit read thus:

“5. Google Maps is a web and app-based service that enables users to search for and navigate to local places. It inter alia offers real-time traffic conditions, and route planning for travelling by foot, car, bike, air, and public transportation. Google Maps can be accessed through the Google Maps application available on mobiles or through a web browser at www.google.com/maps.

6. One of the features available to users on Google Maps is the ability of users to drop a ‘PIN’ on a location of their choosing on the map. Dropping a PIN, allows the user to mark or identify a location on the map without necessarily requiring access to the user’s location data. Users may drop a PIN either on the mobile application or on the web browser. To drop a PIN, a user may either:

a.press and hold the desired location where the PIN is to be dropped on the map on the mobile application; or

b.click on the desired location on the map on a web browser.

7. Upon dropping the PIN, the user dropping the PIN can identify the specific coordinates of the location on the map. Through the Google Maps app or through a web browser, the user dropping the PIN may opt to get directions to the location, mark the location with a label, add a business address to the location, or share the location with another user.

8. The PIN identifies and marks a specific location of the user’s choosing on Google Maps. The PIN need not be dropped at the location where the user/the user’s device is located at the time of sharing the PIN. The PIN dropped and shared need not be the real-time location of the user sharing the PIN.

9. Google Maps allows users to share information, such as the PIN, with third parties. This is explained in Google’s privacy policy, which is available at https:policies.google.com/privacy?hI=en-US, and shares as follows: “Many of our services let you share information with other people, and you have control over how you share [emphasis supplied]”. Users consent to the privacy policy when they create a Google Account. In this case, if a user wants to share a PIN, they can do so by clicking on the ‘share’ button. This generates a link to Google Maps that the user can share with others through messaging platforms or other modes of online communication. When clicked, the link directs users (having access to the link) to the location where the PIN was dropped on the map.

10. The Google Maps PIN feature, which includes the creation of a PIN or the sharing of such a PIN with another user, does not impinge on the user’s privacy as the user has full control over sharing of such information. The user with access to the link can only access the static location pinned and shared on Google Maps. The pinned location does not enable real-time tracking of the user or their device. Even if the PIN were to coincide with a user’s location at a given time, this would (a) be the static location pinned by the user; and (b) only be accessible to others when a user affirmatively shares the PIN with them by clicking on the share button.”

(emphasis added)

10.1.In paragraph 10 of the affidavit, Google LLC stated that the user has full control over sharing PINs with other users. Moreover, it does not impinge on the user’s privacy, as the user retains full control. Most importantly, it is stated that the PIN location does not enable real-time tracking of the user or the user’s device. Therefore, the condition of the accused dropping a pin on Google Maps, as it stands, is completely redundant as the same does not help the first respondent.

10.2.Imposing any bail condition which enables the Police/Investigation Agency to track every movement of the accused released on bail by using any technology or otherwise would undoubtedly violate the right to privacy guaranteed under Article 21. In this case, the condition of dropping a PIN on Google Maps has been incorporated without even considering the technical effect of dropping a PIN and the relevance of the said condition as a condition of bail. This cannot be a condition of bail. The condition deserves to be deleted and ordered accordingly. In some cases, this Court may have imposed a similar condition. But in those cases, this Court was not called upon to decide the issue of the effect and legality of such a condition.

THE CONDITION OF FURNISHING CERTIFICATE OF THE EMBASSY

11.Now, we come to the decision of the Supreme Court Legal Aid Committee1 relied upon by the High Court. In the first part of paragraph 15, the prayers made in the petition filed before this Court have been set out. We are quoting the relevant part of paragraph 15, which reads thus:

“15. But the main reason which motivated the Supreme Court Legal Aid Society to file this petition under Article 32 of the Constitution was the delay in the disposal of cases under the Act involving foreigners. The reliefs claimed included a direction to treat further detention of foreigners, who were languishing in jails as undertrials under the Act for a period exceeding two years, as void or in any case they be released on bail and it was further submitted by counsel that their cases be given priority over others. When the petition came up for admission it was pointed out to counsel that such an invidious distinction between similarly situate undertrials who are citizens of this country and who are foreigners may not be permissible under the Constitution and even if priority is accorded to the cases of foreigners it may have the effect of foreigners being permitted to jump the queue and slide down cases of citizens even if their cases are old and pending since long. Counsel immediately realised that such a distinction if drawn would result in cases of Indian citizens being further delayed at the behest of foreigners, a procedure which may not be consistent with law. He, therefore, rightly sought permission to amend the cause-title and prayer clauses of the petition which was permitted. In substance the petitioner now prays that all undertrials who are in jail for the commission of any offence or offences under the Act for a period exceeding two years on account of the delay in the disposal of cases lodged against them should be forthwith released from jail declaring their further detention to be illegal and void and pending decision of this Court on the said larger issue, they should in any case be released on bail. ………….”

(emphasis added)

In the same paragraph 15, directions have been issued which read thus:

“We, therefore, direct as under:

(i)Where the undertrial is accused of an offence(s) under the Act prescribing a punishment of imprisonment of five years or less and fine, such an undertrial shall be released on bail if he has been in jail for a period which is not less than half the punishment provided for the offence with which he is charged and where he is charged with more than one offence, the offence providing the highest punishment. If the offence with which he is charged prescribes the maximum fine, the bail amount shall be 50% of the said amount with two sureties for like amount. If the maximum fine is not prescribed bail shall be to the satisfaction of the Special Judge concerned with two sureties for like amount.

(ii)Where the undertrial accused is charged with an offence(s) under the Act providing for punishment exceeding five years and fine, such an undertrial shall be released on bail on the term set out in (i) above provided that his bail amount shall in no case be less than Rs 50,000 with two sureties for like amount.

(iii)Where the undertrial accused is charged with an offence(s) under the Act punishable with minimum imprisonment of ten years and a minimum fine of Rupees one lakh, such an undertrial shall be released on bail if he has been in jail for not less than five years provided, he furnishes bail in the sum of Rupees one lakh with two sureties for like amount.

(iv)Where an undertrial accused is charged for the commission of an offence punishable under Sections 31 and 31-A of the Act, such an undertrial shall not be entitled to be released on bail by virtue of this order.

The directives in clauses (i), (ii) and (iii) above shall be subject to the following general conditions:

(i)The undertrial accused entitled to be released on bail shall deposit his passport with the learned Judge of the Special Court concerned and if he does not hold a passport, he shall file an affidavit to that effect in the form that may be prescribed by the learned Special Judge. In the latter case the learned Special Judge will, if he has reason to doubt the accuracy of the statement, write to the Passport Officer concerned to verify the statement and the Passport Officer shall verify his record and send a reply within three weeks. If he fails to reply within the said time, the learned Special Judge will be entitled to act on the statement of the undertrial accused;

(ii)the undertrial accused shall on being released on bail present himself at the police station which has prosecuted him at least once in a month in the case of those covered under clause (i), once in a fortnight in the case of those covered under clause (ii) and once in a week in the case of those covered by clause (iii), unless leave of absence is obtained in advance from the Special Judge concerned;

(iii)the benefit of the direction in clauses (ii) and (iii) shall not be available to those accused persons who are, in the opinion of the learned Special Judge, for reasons to be stated in writing, likely to tamper with evidence or influence the prosecution witnesses;

(iv)in the case of undertrial accused who are foreigners, the Special Judge shall, besides impounding their passports, insist on a certificate of assurance from the Embassy/High Commission of the country to which the foreigner-accused belongs, that the said accused shall not leave the country and shall appear before the Special Court as and when required;

(v)the undertrial accused shall not leave the area in relation to which the Special Court is constituted except with the permission of the learned Special Judge;

(vi)the undertrial accused may furnish bail by depositing cash equal to the bail amount;

(vii)the Special Judge will be at liberty to cancel bail if any of the above conditions are violated or a case for cancellation of bail is otherwise made out; and

(viii)after the release of the undertrial accused pursuant to this order, the cases of those undertrials who have not been released and are in jail will be accorded priority and the Special Court will proceed with them as provided in Section 309 of the Code.”

(emphasis added)

However, paragraph 16 is relevant, which reads thus:

“16. We may state that the above are intended to operate as one-time directions for cases in which the accused persons are in jail and their trials are delayed. They are not intended to interfere with the Special Court’s power to grant bail under Section 37 of the Act. The Special Court will be free to exercise that power keeping in view the complaint of inordinate delay in the disposal of the pending cases. The Special Court will, notwithstanding the directions, be free to cancel bail if the accused is found to be misusing it and grounds for cancellation of bail exist. Lastly, we grant liberty to apply in case of any difficulty in the implementation of this order.”

(emphasis added)

11.1.The directions contained in paragraph 15 were to operate as one-time directions applicable only to the pending cases of the accused who were in jail on the date of the judgment. These conditions were required to be incorporated in the order while releasing an accused on bail as a one-time measure. Paragraph 16 clarifies that if a bail application is made to the Special Court with a grievance regarding inordinate delay in the disposal of pending cases, the Special Court will be empowered to exercise power to grant bail in light of what is held in paragraph 15. Therefore, it is not necessary that in every case where bail is granted to an accused in an NDPS case who is a foreign national on the ground of long incarceration of more than 50% of the minimum sentence, the condition of obtaining a ‘certificate of assurance’ from the Embassy/High Commission should be incorporated. It will depend on the facts of each case.

12.Even if such a condition is incorporated, on an application made by the accused, the concerned Embassy/High Commission declines or fails to issue the certificate within a reasonable time, say within a period of seven days, the Court always has the power to dispense with the said condition. Grant of such a certificate by the Embassy/High Commission is beyond the control of the accused to whom bail is granted. Therefore, when the Embassy/High Commission does not grant such a certificate within a reasonable time, as explained above, the accused, who is otherwise held entitled to bail, cannot be denied bail on the ground that such a condition, which is impossible for the accused to comply with, has not been complied with. Hence, the Court will have to delete the condition. If the Embassy/High Commission records reasons for denying the certificate and the reasons are based on the adverse conduct of the accused based on material, the Court can always consider the reasons recorded while considering an application for dispensing with the condition. However, the Courts must remember that the accused has no right to compel the Embassy/High Commission to issue such a certificate. There can be very many reasons for recording adversely which again cannot be the basis to deny bail already granted. In such a case, instead of the condition of obtaining such a certificate, the condition of surrendering the passport and regularly reporting to the local police station/Trial Court can always be imposed, depending upon the facts of each case.

13.Coming to the facts of the case, bail has been granted to the appellant firstly on the ground that the appellant has been implicated based on statements recorded under Section 67 of the NDPS Act, and that such statements are entirely inadmissible in view of the decision of this Court in the case of Tofan Singh v. State of Tamil Nadu 5. So, bail has been granted on merits as well. Secondly, the bail has also been granted relying upon what is held in paragraph 15 of the decision in the case of Supreme Court Legal Aid Committee 1. As the bail was granted on merits by relying upon the decision of this Court in the case of Tofan Singh 2, there was no reason for the High Court to have imposed all the onerous conditions incorporated in paragraph 15 of the decision in the case of Supreme Court Legal Aid Committee 1.

14.Therefore, in view of the above discussion, we are of the view that it is not necessary to refer the case to a larger Bench for reconsideration of condition No. (iv) in paragraph 15 of the decision in the case of Supreme Court Legal Aid Committee1.

15.Based on our findings on the two issues mentioned above, we direct that the two conditions in the order granting bail to the appellant, namely, obtaining a certificate from the Embassy/High Commission and dropping a pin of Google Maps, shall stand deleted.

16.The case shall be listed on 15 July 2024 for passing final orders after considering the compliances made by the appellant so far.

Result of the case: Listed for final orders.

1 [1994] Supp. 4 SCR 386 : (1994) 6 SCC 731

2 (2018) 16 SCC 74

3 [2009] 2 SCR 806 : (2009) 4 SCC 45

4 [2000] 3 SCR 644 : (2000) 5 SCC 712

5 [2020] 12 SCR 583 : (2021) 4 SCC 1

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Universities – Appointment of Vice-Chancellors in 35 State-aided Universities in the State of West Bengal – Dispute between the State Government and the Governor of West Bengal-Chancellor of subject Universities, as regards the appointment of regular Vice-Chancellors – No consensus between the authorities in the matter of constitution and composition of Search Committees for shortlisting the candidates for appointment as Vice Chancellors – Neither regular Vice-Chancellors nor interim or ad-hoc Vice-Chancellors permitted to be appointed – Invocation of power u/Art. 142: Held: Order passed for constitution of Search-cum-Selection Committee for all the subject Universities – It is resolved to constitute Search-cum-Selection Committee(s) of the same composition so as to avoid any confusion – Endeavour is to infuse transparency, independence, fairness, and impartiality so as to ensure that the persons possessing the highest level of competence and integrity and are capable of leading the University – Experts who are eminent scientists, educationists, jurists, subject experts, and administrators in their own right, are shortlisted – Appointment of Hon’ble Mr. Justice Uday Umesh Lalit, Former Chief Justice of India as Chairperson of the Search-cum-Selection Committees for all the Universities in West Bengal – Chairperson authorized to constitute separate or joint Search-cum-Selection Committees for one or more Universities, keeping in view the nature of subjects/disciplines in which education is being imparted therein – Chairperson to nominate 4 persons out of the empaneled experts, whom he finds capable of short-listing suitable names for appointment as Vice-Chancellors – Chairperson to constitute the Search-cum-Selection Committees for the group or the individual Universities as early as possible – Chairperson to be paid an honorarium of Rs. 3 lakhs for every effective day of proceedings of the Search Committee, until the entire process is completed – The Chief Minister, State of West Bengal to recommend the shortlisted names in order of preference for appointment as Vice-Chancellors – In case the Chief Minister has reasons to believe that any short-listed person is unsuitable for appointment as Vice-Chancellor, the remarks to this effect to be put up before the Chancellor – In cases where said objection is not acceptable to the Chancellor or where the Chancellor has objection against empanelment of any particular name for which he has assigned his own reasons, all such files to be put up before this Court – Final decision in this regard to be taken by this Court after giving reasonable opportunity of being heard to the objectors – State of West Bengal to file the Status Report in respect to compliance of the directions issued – West Bengal University Laws (Amendment) Act,2012 – West Bengal Laws (Amendment) Act,2014 – Constitution of India – Art.142. [Paras 10,12,14-20]

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[2024] 7 S.C.R. 69 : 2024 INSC 469

The State of West Bengal v. Dr. Sanat Kumar Ghosh and Ors.

(Special Leave To Appeal (Civil) No. 17403 of 2023)

08 July 2024

[Surya Kant* and K.V. Viswanathan, JJ.]

Issue for Consideration

Matter pertains to the appointment of Vice-Chancellors in the State-aided Universities in the State of West Bengal.

Headnotes

Universities – Appointment of Vice-Chancellors in 35 State-aided Universities in the State of West Bengal – Dispute between the State Government and the Governor of West Bengal-Chancellor of subject Universities, as regards the appointment of regular Vice-Chancellors – No consensus between the authorities in the matter of constitution and composition of Search Committees for shortlisting the candidates for appointment as Vice Chancellors – Neither regular Vice-Chancellors nor interim or ad-hoc Vice-Chancellors permitted to be appointed – Invocation of power u/Art. 142:

Held: Order passed for constitution of Search-cum-Selection Committee for all the subject Universities – It is resolved to constitute Search-cum-Selection Committee(s) of the same composition so as to avoid any confusion – Endeavour is to infuse transparency, independence, fairness, and impartiality so as to ensure that the persons possessing the highest level of competence and integrity and are capable of leading the University – Experts who are eminent scientists, educationists, jurists, subject experts, and administrators in their own right, are shortlisted – Appointment of Hon’ble Mr. Justice Uday Umesh Lalit, Former Chief Justice of India as Chairperson of the Search-cum-Selection Committees for all the Universities in West Bengal – Chairperson authorized to constitute separate or joint Search-cum-Selection Committees for one or more Universities, keeping in view the nature of subjects/disciplines in which education is being imparted therein – Chairperson to nominate 4 persons out of the empaneled experts, whom he finds capable of short-listing suitable names for appointment as Vice-Chancellors – Chairperson to constitute the Search-cum-Selection Committees for the group or the individual Universities as early as possible – Chairperson to be paid an honorarium of Rs. 3 lakhs for every effective day of proceedings of the Search Committee, until the entire process is completed – The Chief Minister, State of West Bengal to recommend the shortlisted names in order of preference for appointment as Vice-Chancellors – In case the Chief Minister has reasons to believe that any short-listed person is unsuitable for appointment as Vice-Chancellor, the remarks to this effect to be put up before the Chancellor – In cases where said objection is not acceptable to the Chancellor or where the Chancellor has objection against empanelment of any particular name for which he has assigned his own reasons, all such files to be put up before this Court – Final decision in this regard to be taken by this Court after giving reasonable opportunity of being heard to the objectors – State of West Bengal to file the Status Report in respect to compliance of the directions issued – West Bengal University Laws (Amendment) Act,2012 – West Bengal Laws (Amendment) Act,2014 – Constitution of India – Art.142. [Paras 10,12,14-20]

List of Acts

West Bengal University Laws (Amendment) Act, 2012; West Bengal Laws (Amendment) Act, 2014; Calcutta University Act, 1979; Constitution of India; University Grants Commission Act, 1956; University Grants Commission’s Regulations, 2018.

List of Keywords

Universities; Appointment of Vice-Chancellors; State-aided Universities in West Bengal; Appointment of regular Vice-Chancellors; Constitution and composition of Search-cum-Selection Committees; Interim or ad-hoc Vice-Chancellors; Powers u/Art. 142; Appointment of Hon’ble Mr. Justice Uday Umesh Lalit, Former Chief Justice of India as Chairperson of the Search-cum-Selection Committees for Universities in West Bengal; Honorarium of Rs. 3 lakhs to Chairperson; Filing of Status Report.

Case Arising From

CIVIL APPELLATE JURISDICTION: Special Leave To Appeal (Civil) No.17403 of 2023

From the Judgment and Order dated 28.06.2023 of the High Court at Calcutta in WPA(P) No.272 of 2023

Appearances for Parties

Dr. Abhishek Manu Singhvi, Jaideep Gupta, Sr. Advs., Sanjay Basu, Ms. Astha Sharma, Amit Bhandari, Nipun Saxena, Piyush Agarwal, Ms. Shrivalli Kajaria, Srisatya Mohanty, Ms. Anju Thomas, Sanjeev Kaushik, Ms. Mantika Haryani, Shreyas Awasthi, Himanshu Chakravarty, Ms. Ripul Swati Kumari, Bhanu Mishra, Ms. Muskan Surana, Archit Adlakha, Ms. Soumya Saxena, Aditya Raj Pandey, Ms. Lihzu Shiney Konyak, Simranjeet Singh Rekhi, Ms. Pratibha Yadav, Abhijit Pattanaik, Advs. for the Petitioner.

Gopal Shankarnarayan, Rana Mukherjee, Sr. Advs., Dr. Chaples Bandyopadhyay, Subhasish Bhowmick, Ms. Gargy Basu, Ms. Ananda Mayee, Ms. Manisha Pandey, Rahul Kushwaha, Ms. Neerja Sharma, Reegan S. Bel, Joydeep Mazumdar, P. Sil, B.K. Pandit, Ms. Shalini Kaul, Chandrashekhar A. Chakalabbi, Pijush Biswas, S.K. Pandey, Awanish Kumar, Anshul Rai, Abhinav Garg (For M/S. Dharmaprabhas Law Associates), Shyam D. Nandan, Rohit Bohra, Priyanshu Upadhyay, Viraat Tripathi, Abeer Gobind Shandilya, Anilendra Pandey, Manoj Ranjan Sinha, Deepak Sain, Ms. Nisha, Mrigank Prabhakar, Ms. Sakshi Banga, Anand Varma, Ayush Gupta, Soumya Dutta, Ms. Aditi Gupta, Kunal Chatterji, Ms. Maitrayee Banerjee, Rohit Bansal, Advs. for the Respondent.

Judgment / Order of the Supreme Court

Order

Surya Kant, J.

There are approximately [35] state-aided Universities in the State of West Bengal. The appointment of their Vice-Chancellors is the hallmark of this controversy. It seems that the Petitioner-State of West Bengal appointed 24 Vice-Chancellors in the year 2022. These appointments, along with the West Bengal University Laws (Amendment) Act, 2012 and the West Bengal Laws (Amendment) Act, 2014, were challenged before the High Court in a Public Interest Litigation. The High Court vide judgement dated 14.03.2023 held that the Search Committee constituted by the State Government for the selection of those 24 Vice-Chancellors did not have any Member nominated by the Chairman of the University Grants Commission (UGC) and since the said Search Committee was in violation of the UGC’s Act, the appointment of 24 Vice-Chancellors was unsustainable in law. The Division Bench judgment was upheld by this Court.

2.It further seems that the State of West Bengal thereafter made certain amendments in the State Universities Act in tune with the UGC’s Regulations, 2018. However, instead of resorting to the statutorily prescribed procedure for appointment of regular Vice-Chancellors, the Minister-in-charge of the Department of Higher Education, Government of West Bengal, sent a proposal on 18.05.2023 to the Chancellor for extending the tenure of 27 Vice-Chancellors whose tenure was about to expire. The Chancellor, on the other hand, appointed ‘Interim Vice-Chancellors’ and as many as 28 professors were given such assignments. The appointments of these interim/ad-hoc/caretaker Vice-Chancellors came to be challenged by Respondent No. 1 through a Public Interest Litigation, which the High Court not only dismissed vide impugned judgment dated 28-06-2023 but also conferred perks and other monetary benefits on its own to these acting Vice-Chancellors, a benefit which the Chancellor himself had not granted to them.

3.The Division Bench order, to the extent of granting pay, allowance, perks or facilities admissible to a regular Vice-Chancellor, was consequently stayed by this Court vide order dated 06.10.2023.

4.The rift between the State Government, on the one hand, and the Governor of West Bengal, who happens to be the Chancellor of subject Universities, on the other, is the root cause of stalemate in the appointment of regular Vice-Chancellors. To elaborate further, there is no consensus between the two sets of authorities in the matter of constitution and composition of Search Committees for shortlisting the candidates for appointment as Vice Chancellors.

5.Since we, prima facie, disapproved the Chancellor’s action of appointing interim Vice-Chancellors without consulting the State Government, all such further appointments were stayed vide order dated 06.10.2023.

6.The chaos has further deepened as neither there are regular Vice-Chancellors nor interim or ad-hoc Vice-Chancellors are permitted to be appointed. Regardless thereto, the Chancellor has assigned the powers of Vice-Chancellors to various persons — not necessarily all of them are academicians. The State of West Bengal has strongly protested against such a recourse. We, however, do not deem it necessary to dwell on that issue at this stage for the reasons stated hereinafter:

(I)On 15-09-2023, the learned Senior Counsel for the State of West Bengal, as well as learned counsel for the Chancellor, very fairly suggested that, pending multiple controversies, the Search Committee may be constituted by this Court. In order to explore that possibility, this Court on 27.09.2023 directed the learned senior counsel/counsel for the parties to submit, in a tabulated chart, the details of the Universities, the description of their subjects/disciplines, existing provisions for constitution of Search Committees, as well as the new provision which the State of West Bengal had proposed in the Bill awaiting assent of the Governor. Counsel for the intervenors were also granted liberty to suggest the names of renowned scientists, technocrats, administrators, educationists, jurists or any other eminent person for the purpose of nomination to the Search Committee.

(II)On 06.10.2023, the parties sought time to replace certain names earlier suggested by them for nomination to the Search Committees.

(III)On 20.11.2023, learned senior counsel for the parties agreed to submit a consolidated list of the names proposed by the State Government/Chief Minister/Chancellor/UGC and other prescribed authorities for the purpose of constituting Search Committees.

(IV)On 01.12.2023, learned Attorney General for India entered appearance on behalf of the Chancellor. He assured that the names to be suggested by the Chancellor for the constitution of Search Committees will be shared with counsels for the petitioner/intervenors. Besides granting time in this regard, we also impressed upon the learned Attorney General to use his good offices to explore an amicable mode of appointment of the Vice-Chancellors, in conformity with the Statutes governing such appointments.

(V)It seems that pursuant to the initiative taken by learned Attorney General, some meetings were held on 04.12.2023, 13.03.2024 and 14.03.2024. These meetings, however, did not yield the desired results.

(VI)On 16.04.2024, learned Attorney General, however, very fairly stated that six posts of the Vice-Chancellors will be filled up out of the list recommended by the State Government. Eventually, on 17.05.2024, we were informed that the State Government had sent a list of 15 names for appointment of Vice-Chancellors in 15 Universities. The learned Chancellor found 07 of them unsuitable and apparently had no objection against the remaining 08 persons. We, therefore, directed that those 08 names be appointed within 10 days. In order to instill confidence on both sides, it was observed that the Chief Minister of the State may send names of some more eminent persons to fill up the 07 vacancies of Vice-Chancellors.

(VII)We have no reason to doubt that the Chief Minister must have sent a few more names of eminent personalities and the Chancellor hopefully has accorded his approval for their appointment. As regard to the left-out Universities, we agreed on 17.05.2024, on the joint request of learned senior counsel for the parties, that a Search-cum-Selection Committee shall be constituted by this Court before the next date of hearing.

7.This is how we are tasked to constitute the Search-cum-Selection Committees.

8.Learned senior counsel/counsel for the parties are ad idem that the appointment of Vice-Chancellors in all the Universities are regulated by different Statutes. The academic qualification, teaching experience, and some other distinct features also vary from university to university, depending upon the speciality of the subjects being taught thereby. The (i) names of the University Acts; (ii) existing provision for appointment of Vice-Chancellors; (iii) amended provision for appointment of Vice-Chancellor under the ordinance of 2023; and (iv) subjects/disciplines which are being taught in a University, have been consequently provided to us in a tabulated form. On a cursory look, we find that every statute, broadly speaking, provides that the Vice-Chancellor shall be appointed by the Chancellor on the recommendations of a Search-cum-Selection Committee, who shall hold the office upto the age of 65 years and should be a person possessing the highest level of competence, integrity, morals and institutional commitment. The Vice-Chancellor must also be a distinguished academician with 10 years of experience as a Professor in a University or a well-reputed research/academician organization.

9.On an illustrative basis, we deem it appropriate in this regard to reproduce Section 8 of the Calcutta University Act, 1979, which reads as follows:

“8. (1) The Vice-Chancellor shall be appointed by the Chancellor on the unanimous recommendation of the Senate. If the Senate fails to make any such recommendation, the Vice-Chancellor shall be appointed by the Chancellor in consultation with the Minister from a panel of three persons to be elected by the Senate in accordance with the system of proportional representation by means of the single transferable vote.

(2) (a) The Vice-Chancellor shall hold office for a period of four years or till he attains the age of 65 years, whichever is earlier, and shall, subject to the provisions of this section, be eligible for re-appointment for a period not exceeding four years.

(b) The Chancellor may, notwithstanding the expiration of the term of the office of the Vice-Chancellor or his attaining the age of 65 years, allow him to continue in office till a successor assumes office, provided that he shall not continue as such for any period exceeding one year.

(3) The Vice-Chancellor shall be a whole-time officer of the University and shall be paid from the University Fund a salary of three thousand and five hundred rupees per month and such allowances as the Chancellor may decide.

(4) The Vice-Chancellor may resign his office by writing under his hand addressed to the Chancellor.

(5) If—

(a) the Vice-Chancellor is, by reason of leave, illness or other cause, temporarily unable to exercise the powers and perform the duties of his office, or

(b) a vacancy occurs in the office of the Vice-Chancellor by reason of death, resignation or expiry of the term of his office, removal or otherwise,

then, during the period of such temporary inability or pending the appointment of a Vice-Chancellor, as the case may be, the Pro-Vice- Chancellor for Academic Affairs shall exercise the powers and perform the duties of the Vice-Chancellor.

(6) The vacancy in the office of the Vice-Chancellor occurring by reason of death, resignation or expiry of the term of his office, removal or otherwise shall be filled up by appointment of a Vice-Chancellor in accordance with the provisions of sub-section (1) within a period of six months from the date of occurrence of the vacancy.”

10.We may hasten to add at this stage that notwithstanding some variance in the provisions of the Acts under which Vice-Chancellors are to be appointed, especially with regard to composition of the Search-cum-Selection Committee, we deem it appropriate to invoke our powers under Article 142 of the Constitution to do complete justice in this matter and pass this common order for constitution of Search-cum-Selection Committee for all the subject Universities. Hence, we resolve to constitute Search-cum-Selection Committee(s) of the same composition so as to avoid any confusion, irrespective of the fact that the relevant provision of the Statute of the concerned University may contain slight variations. Our endeavour is to infuse transparency, independence, fairness, and impartiality so as to ensure that the persons possessing the highest level of competence and integrity and are capable of leading the University by example are shortlisted. In this regard, we have made an effort to shortlist experts who are eminent scientists, educationists, jurists, subject experts, and administrators in their own right. We have further attempted to set out that nominees of the Chancellor, Chief Minister, UGC, State Government, the Higher Education Department of West Bengal the intervenors etc. are adequately represented.

11.While shortlisting the experts for composition of the Search-cm-Selection Committee, we have been further guided by the nature of subjects and disciplines in which education is being imparted in different Universities. We find that, broadly, all the Universities can be categorized as follows:

i)Universities with faculties predominantly in arts and science:

a)West Bengal State University

b)Sidho Kanhi Birsha University

c)Burdwan University

d)Jadavpur University

e)Gour Banga University

f)Bankura University

g)Presidency University

h)Cooch Behar Panchanan Barma University

i)Sadhu Ram Chand Murmu University of Jhargram

j)Alipurduar University

k)Raiganj University

l)Diamond Harbour Women’s University

m)Murshidabad University

n)Mahatma Gandhi University

o)Dakshin Dinajpur University

ii)Universities with faculties predominantly in commerce and science:

a)North Bengal University

b)Kalyani University

iii)Universities with faculties predominantly in arts:

a)Kanyashree University

b)Rabindra Bharati University

c)Harichand Guruchand University

d)Hindi University

e)Biswa Bangla Biswabidyalaya

f)Darjeeling Hills University

iv)Universities with faculties predominantly in science:

a)Maulana Abdul Kalam Azad University of Technology

b)Aliah University

c)West Bengal University of Health Sciences

d)West Bengal University of Animal and Fishery Sciences

e)Kazi Nazrul University

f)Rani Rashmoni Green University

v)Other miscellaneous and multi-disciplinary universities:

a)Calcutta University

b)Sanskrit College and University

c)Baba Saheb Ambedkar Education University

d)Vidyasagar University

e)Netaji Subhas Open University

f)Uttar Banga Krishi Vishwavidyalaya

g)Bidhan Chandra Krishi Vishwavidyalaya

12.We hereby appoint Hon’ble Mr. Justice Uday Umesh Lalit, Former Chief Justice of India as Chairperson of the Search-cum-Selection Committees for all the Universities.

13.Following is the list of eminent educationists, scientists, jurists, subject experts and administrators etc. who have been short-listed for the purpose of empanelment on Search-cum-Selection Committee(s):

(i)Arts & Humanities

a)Prof. Sabyasachi Basu Ray Chaudhury, Ex. V.C., Rabindra Bharti University. Address: 56A, BT Road, Kolkata - 700500.

b)Prof. Siuli Sarkar, Principal, Lady Brabourne College.

c)Prof. Sibaji Pratim Basu, Professor, Vidyasagar University. Address: Department of Political Science with Rural Administration, Vidyasagar University, Midanpore – 721102.

d)Professor Ujjwal K Singh, Department of Political Science, University of Delhi. Email: ujjwalksingh@gmail.com; Phone no: 8800788862.

(ii)History

a)Prof. Tapati Guha Thakurta, Prof. in Social Sciences, Centre for Studies in Social Sciences. Address: C D 157, Salt Lake, Sector I, Kolkata – 700064.

b)Prof. Amit De, Ashutosh Chair Professor of History, Calcutta University.

c)Prof. Sajal Nag, Retd. Professor, Assam University.

d)Prof. Rajat Kanta Roy, Former VC, Visva Bharati.

e)Prof. Raghuvendra Tanwar, Chairman, Indian Council for Historical Research. Email: chairman@ichr.ac.in; Phone no: 9896219909.

(iii)Sociology & Anthropology

a)Prof. Ramanuj Ganguly, Professor, WBSU. Address: Flat: A-106, Mall Enclave, 13, KB Sarani, Kolkata – 700080.

b)Prof. Tanka Bahadur Subba, Ex VC, Sikkim Central University.

c)Prof. Ravinder Kaur, Professor of Sociology, IIT Delhi, email: ravinder.iitd@gmail.com.

(iv)Economics

a)Prof. Abhirup Sarkar, Professor, Indian Statistical Institute, Calcutta. Address: 10 Mandeville Gardens, Flat 802, Kolkata – 700019.

b)Prof. Saibal Kar, RBI Chair Professor of Economics, Centre for Studies in Social Sciences. Address: R1, BP Township, Kolkata – 700094.

c)Prof. (Dr.) Ram Singh, Director, Delhi School of Economics, University of Delhi, Delhi. Email: ramsingh@econdse.org; Phone number: 9971863030.

(v)Law

a)Prof. Rathin Bandyopadhyay, Professor of Law, Department of Law, NBU. Address: Department of Law, University of North Bengal, Siliguri – 734013.

b)Justice G. Raghuram, former Judge, Andhra Pradesh High Court and former Director, National Judicial Academy.

(vi)English

a)Prof. Debnarayan Bandyopadhyay, Ex VC Bankura University. Address: 20 Chandranath Chatterjee Street, Kolkata 700025.

b)Prof. Anindyo Roy, Associate Professor Emeritus, Department of English, Colby College, Waterville. Email: aroy@colby.edu.

c)Prof. (Dr.) Meena T. Pillai – Dean, Faculty of Arts and Professor, Institute of English and Director, Centre for Cultural Studies of University of Kerala.

(vii)Hindi

a)Prof. T.V. Kattimani, VC, Central Tribal University, Andhra Pradesh.

b)Dr. Chander Trikha, Director, Urdu Cell, Sahitya Academy, Haryana, R/o of House No.345, Sector 22A, Chandigarh (Mob. No.09417004423).

(viii)Bengali

a)Prof. Mir Rejaul Karim, Professor, Aliah University. Address: Department of Bengali, Aliah University, Park Circus Campus, 17 Gorachand Road, Kolkata-700014

b)Prof. Tapadhir Bhattacharya, former VC, Assam University.

(ix)Chemistry

a)Prof. Abhijit Chakrabarti, Retired Professor, Saha Institute of Nuclear Physics. Email: abhijit1960@gmail.com.

b)Prof. Dhrubajyoti Chattopadhyay, VC, Sister Nibedita University.

c)Prof. Uday Maitra, FNA Deprtment of Organic Chemistry, Indian Institute of Sciences, Bangalore. Email: maitra@iisc.ac.in.

d)Prof. Ramesh Chandra, VC, Maharaja Surajmal Brij University, Bharatpur. Email: acbrdu@hotmail.com.

e)Prof. Siva Umapathy, Physical Chemistry, Indian Institute of Sciences, Bangalore. Email: umapathy@iisc.ac.in

(x)Physics

a)Swami Atmapriayanand, VC, Ramakrishna Mission Vivekananda Educational and Research Institute.

b)Prof. Amitava Mukhapadhyay, Professor, NBU.

c)Prof. Amitabha Roy Chaudhuri, Deptt of Physics, CU.

d)Prof. A.N. Basu, former VC, JU and distinguished Professor of Physics.

(xi)Biology

a)Prof. Subhra Chakraborty, Director, Genomics Research Centre, Delhi.

b)Prof. B.A. Chopade, VC – AKS University, Satna, Former VC, Dr. Babasaheb Ambedkar Marathwada University, Aurangabad.

c)Prof. (Dr.) Navin Sheth – former VC, Gujarat Technological University.

d)Prof. Emeritus. Prof. V. S. Chauhan, Ph.D., D.Phil. (Oxon), FNA, FNASc, TWAS, Former UGC Chairman. Email: viranderschauhan@gmail.com. Phone No.: 9811292058.

(xii)Botany and Zoology

a)Prof. Subhas Chandra Roy, Professor, NBU

b)Prof. Dipak Kumar Kar, ex VC, SKB University. Address: 409 Lake Gardens, Kolkata 700045; Phone No.: 7044577044

(xiii)Mathematics

a)Prof. Kallol Paul, Professor, Jadavpur University. Address: 188 Raja SC Mallik Road, Kolkata 700032.

b)Prof. Suparna De Sarkar, Senior Professor, NBU.

c)Prof. Tarun Das, Department of Mathematics, University of Delhi. Email: tarukd@gmail.com; Phone No.: 9911854923.

(xiv)Computer Science

a)Prof. Amlan Chakraborty, Calcutta University.

b)Prof. Anupam Basu, Director NIT, Durgapur.

c)Shri Raj Shekhar Joshi, Group Head (Digital Technology & Transformation), Joint President, Aditya Birla Group.

(xv)Electrical Engineering

a)Prof. Bhaskar Gupta, Professor, Jadavpur University. Address: 19C/1, Kalibari Lane, Kolkata - 700032.

b)Prof. Ajoy Roy, IIT Kharagpur.

c)Dr. Prith Banerjee, Chief Technology Officer of Ansys.

(xvi)Chemical and Biochemcal Engineering

a)Prof. Chiranjib Bhattacharya, ex Pro-VC, JU

b)Prof. S.E. Hasnain, Padma Shree Awardee, National Science Chair, SERB, Department of Biochemical Engineering and Biotechnology, IIT Delhi.

c)Prof. RC Kuhad, Former Vice-Chancellor, Central University of Haryana, and retired Professor of Bio-Chemistry. Email: kuhad85@gmail.com; Phone no.: 9817813027.

(xvii)Civil and Mechanical Engineering

a)Prof. Deepankar Choudhury, T. Kant Chair Professor and Head of Civil Engineering department at IIT Bombay.

b)Prof. Sunil Kumar, VC- Rajiv Gandhi Proudyogiki Vishwavidyalay, Bhopal.

(xviii)Minerals and Agricultural Engineering

a)Prof. Indranil Manna, JC Bose Fellow, FTWAS, FNA, FNAE, FNASc, FASc, MAPAM, FIE(I), FEMSI, FAScT, Professor, IIT Kharagpur, Former Director, CSIR- Central Glass & Ceramic Institute, VC Birla Institute of Technology, Mesra.

b)Prof. (Dr.) Virendra Kumar Tiwari, Director, IIT Kharagpur.

(xix)International Relations

a)Prof. Om Prakash Mishra, ex PVC, IGNOU & ex VC, NBU

(xx)Statistics & Information Science

a)Prof. Sabuj Kumar Chodhury, Professor, Department of Library & Information Science. Address: Third Floor, Asutosh Building, 87/1, College Street, Kolkata – 700073.

b)Prof. Bimal Kumar Roy, Head, RC Bose Centre for Cryptology and Security, ISI Kolkata.

(xxi)Physiology

a)Prof. Gautam Pal, Pro VC, Kalyani University

(xxii)Geology

a)Prof. S.K Tandon, former Pro Vice-Chancellor and retired Professor University of Delhi. Email: sktand@iiser.ac.in; Phone no: 9810437365.

(xxiii)Business and Management

a)Prof. Sujit Kumar Basu, former VC, Visva Bharati University.

b)Professor Errol D’Souza (former Director IIMA), Indian Institute of Management, Ahmedabad. Email: errol@iimahd.ernet.in Phone No.: 9558820604

(xxiv)Environment and Climate

a)Prof. Jayanta Bandopadhya, Retd. Professor, IIM Kolkata Environmental Studies.

b)Mr. Anirban Ghosh, Eminent Technocrat & Head, Centre for Sustainability, Mahindra University.

(xxv)Human Resource

a)Mr. Saptarshi Roy, Technocrat & Director (HR) NTPC Ltd., New Delhi.

(xxvi)Miscellaneous

b)Dr. S.K. Pattanayak, IAS (Retd.), Former Secretary, Deparment of Agriculture, GOI, New Delhi.

c)Mr. Parimal Rai, IAS (Retd.), Former Chief Secretary, Goa. Address: 60, Poorvi Marg, Third Floor, Vasant Vihar, New Delhi. Phone no: 09779866666/09810533311.

14.The learned Chairperson is hereby authorized to constitute separate or joint Search-cum-Selection Committees for one or more Universities, keeping in view the nature of subjects/disciplines in which education is being imparted in such pooled Universities. The Chairperson is requested to nominate 4 persons out of the empaneled experts, whom he finds capable of short-listing suitable names for appointment as Vice-Chancellors. Learned Chairperson shall preside over every Search-cum-Selection Committee and thus, composition of each such Committee shall be five. The Search-cum-Selection Committee shall prepare a panel of at least 03 names (alphabetically and not in order of merit) for each University.

15.The learned Chairperson is requested to constitute the Search- cum-Selection Committees for the group or the individual Universities as early as possible and preferably within two weeks. The Department of Higher Education, Government of West Bengal is hereby nominated as the nodal department of the State Government to issue advertisements giving vide publicity to invite applications for the posts of Vice-Chancellors. Such advertisements shall contain the details of the requisite qualification and other eligibility conditions, with a specific reference to this Court’s order so as to infuse confidence, leaving no uncertainty in the minds of the meritorious aspirants in submitting their claims. The advertisements shall give four weeks’ time to submit the applications. Such applications shall be scrutinized by the concerned department of the State Government within one week and shall thereafter the entire set of all applications be placed before the learned Chairperson of the Search-cum-Selection Committee, who in turn, will get the dossier of each candidate prepared for consideration of the Search-cum-Selection Committee. The Search Committee may endeavour to complete their task within three months from today.

16.The learned Chairperson shall be paid an honorarium of Rs. 3 lakhs for every effective day of proceedings of the Search Committee, until the entire process is completed. The State Government, in addition to honorarium, provide the Chairperson with a suitable office and full secretarial assistance, along with transit accommodation at Kolkata. The learned Chairperson shall also be provided with an official vehicle and necessary paraphernalia forthwith, commensurate to the constitutional position held by him in the past.

17.The members of the Search-cum-Selection Committee shall be entitled to such allowance, perks, and facilities as may have been prescribed under the Statutes or by the State Government. If nothing has been prescribed, in that case, the petitioner-State shall apprise this Court of the status on the next date of hearing to enable us to pass appropriate order in this regard. Meanwhile, State Government is directed to reimburse their air fare (economy class) lodging and boarding expenses within one week of submission of such claims.

18.The recommendations made by the Search-cum-Selection Committee, duly endorsed by the learned Chairperson, shall be put up before the Chief Minister (and not the Minister-in-charge of a Department) for necessary consideration. In case the Chief Minister, State of West Bengal has reasons to believe that any short-listed person is unsuitable for appointment as Vice-Chancellor, the remarks to this effect along with supporting material and the original record of the recommendation made by the Search-cum-Selection Committee, shall be put up before the learned Chancellor within two weeks. The Chief Minister shall be entitled to recommend the shortlisted names in order of preference for appointment as Vice-Chancellors.

19.The learned Chancellor on the receipt of record from the Chief Minister of the State, shall appoint the Vice-Chancellors out of the empaneled names, in the same order of preference as recommended by the Chief Minister of the State. In case the learned Chancellor has any reservation against the empaneled names and/or the remarks made by the Chief Minister of the State against any short-listed candidate, the learned Chancellor shall be entitled to put up his own opinion on file, duly supported with reasons and relevant material.

20.The learned Chancellor shall accord his approval (save and except when there is a difference of opinion) within two weeks of receipt of file from the Chief Minister of the State. The Department of Higher Education, Government of West Bengal or any other concerned Department of the State Government are hereby directed to notify the appointment within one week from the date of receipt of approval from the learned Chancellor of the University.

21.In the case(s) where the Chief Minister of the State has objected to the inclusion of any name in the panel and such objection is not acceptable to the Chancellor or where the Chancellor has an objection against empanelment of any particular name for which he has assigned his own reasons, all such files shall be put up before this Court. We make it clear that a final decision in this regard shall be taken by this Court after giving reasonable opportunity of being heard to the objectors.

22.The State of West Bengal shall file the Status Report in respect to compliance of the directions issued here-in-above before the next date of hearing. We make it clear that since the constitution and composition of Search-cum-Selection Committee is at the instance and with the consent of the parties, we will not entertain any objection from any side for non-compliance.

Result of the case: Directions issued.

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